Alcohol, legal liability and the #MeToo movement at the staff Christmas party

With the office Christmas party season upon us, employees and employers should be aware of the often dangerous combination of alcohol and co-workers.

From bad behaviour to drunk driving to sexual harassment, lots can go wrong, but just who is liable when it does?

Lawyer Brian Vickers with Baker Newby LLP in Chilliwack explains some of the law surrounding whether an employee can be fired for getting drunk at a staff party as well as issues surrounding sexual harassment in light of the #MeToo movement.

So can an employee be fired for getting drunk at a staff Christmas party?

Well if the company has a policy that employees can’t drink alcohol, then probably. But if it’s permitted as it is at most company holiday parties, typically the liability issue is less about whether an employee drinks too much but is instead about what he or she does while drunk.

“You are not being fired for your intoxication, you will be fired for an event, for example you assaulted somebody,” Vickers said.

But a more complex question is whether an employer can be held liable if an employee gets drunk at a company-sponsored party and, for example, crashes while driving home?

A 2006 judgment by the Supreme Court of Canada, Childs v. Desormeaux, really limited the legal concept of social host liability. That means if an individual has a bunch of people over to their house, in most conceivable situations, the host doesn’t owe a duty of care to the a member of the public injured because of the actions of a drunk a guest.

Most staff Christmas parties, however, aren’t at homes but are at restaurants and bars. Here, the employer certainly has a moral responsibility to employees, but the commercial host liability really takes over.

“Typically what happens is the employer will make sure everyone has a safe ride, but I think it falls more on the commercial host,” Vickers said. “They are the ones booking these parties making a ton of money.”

If, in a third example, a company rents a hall and takes out a liquor licence to serve alcohol. The responsibility would likely fall more to the person or employer that got the licence.

Having said all of that, liability can be portioned out in percentages, and it’s possible a court might find everyone involved has varying degrees of exposure.

Simply put, if you get in a rearender with your car and injure someone, you will likely be held liable. If you were intoxicated, some of your liability may be attributed to the establishment that served the alcohol to you.

As for sexual harassment or misconduct at a Christmas party, that is pretty simple: Companies need to have policies for that type of behaviour and policy needs to be followed.

“It’s super straightforward, they need to report it to their supervisor and they need to conduct an investigation to find out what happened,” Vickers said.

If it’s a criminal matter, it needs to be reported to police, but company policy needs to be considered.

Where lawyers such as Vickers usually get involved is when an employee is fired and that employees sues for wrongful dismissal. Then there is something called constructive dismissal. That’s where an employee might quit, but the reason they quit is, for example, persistent sexual harassment.

“If you have somebody who says, ‘I feel very uncomfortable coming to work, the boss flirted with me,’ what are their options? If they end up quitting then they can sue for a hostile work environment. The employee may have been constructively dismissed as a result of the employer’s failing to meet obligations.”

Employers really need to have a script in writing to follow in this regard.

“All employers ought to have a policy in place to address sexual harassment and bullying in the workplace generally.”

As for the #MeToo movement, Vickers said that has emboldened victims into coming forward. This has caused legal challenges for employers, because sometimes dated complaints come out of the woodwork.

“The #MeToo movement has certainly empowered individuals who have been on the wrong side of a harassment claim, say that’s 10 or 15 years old,” he said. “They are just more difficult to investigate because the evidence isn’t fresh. That doesn’t say anything about the legitimacy of the complaint.”

And at the staff Christmas party, the employer needs to take responsibility and can be held at least partly liable for what goes on.

At the end of the day, staff get-together or a regular day at work, companies should have policies in place regarding sexual harassment, and they should make sure alcohol consumption doesn’t get out of control.